In count one of a two-count indictment, Bonnie Sue O'Brien was charged withknowingly acquiring, in a manner not authorized by Chapter 51, Title 7, U.S.C.,or the regulations thereunder, food stamp coupons having a face value of $500in exchange for $220, in violation of 7 U.S.C. 2024(b)1 In a second count,Bonnie Sue O'Brien and her husband, Paul O'Brien, were charged withknowingly acquiring, in a manner not authorized by Chapter 51, Title 7, U.S.C.,or the regulations issued thereunder, food stamp coupons in exchange for 20tablets of phenmetrazine,2 in violation of 7 U.S.C. 2024(b). A jury wasunable to reach a verdict with respect to the first count of the indictment and amistrial as to that count was declared. The same jury, however, convicted bothO'Briens on the second count, and the O'Briens now appeal their respectiveconvictions on that count.

Sometime in the early part of 1980, Jackie Clark, a long-time friend of BonnieSue O'Brien, became an informant. Clark contacted Ms. O'Brien on or about

March 8, 1980, to ascertain whether she was interested in purchasing some foodstamp coupons from him. As a result of this initial contact, sometime later thatday Clark and an undercover police officer visited Ms. O'Brien in her home.Ms. O'Brien advised Clark and the officer that she needed to cash a check,whereupon they accompanied her to a grocery store where she cashed a check.Thereafter, Ms. O'Brien allegedly gave them $220 in exchange for $500 worthof food stamps. This transaction formed the basis for the first count in theindictment, which culminated in a hung jury and a mistrial.3

Seven weeks after the events of March 8, 1980, the informant and theundercover police officer returned to the O'Brien residence. This time theyinitially contacted only Paul O'Brien, and not Ms. O'Brien. On that occasion itwas agreed that in exchange for $500 worth of food stamps, Paul O'Brien wouldgive them 20 tablets of phenmetrazine. Bonnie Sue O'Brien thereafteraccompanied her husband Paul, first to a doctor and then to a pharmacy, where,pursuant to a prescription, the phenmetrazine was obtained. Both O'Briens werepresent in their home when the food stamps and pills were later exchanged. Theundercover agent testified that a portion of the food stamp coupons were givendirectly to Bonnie Sue O'Brien, and that it was she who handed over thephenmetrazine. This transaction formed the basis for the second count in theindictment. As indicated, the jury convicted both O'Briens on the second count,and this appeal relates to such convictions.

On appeal, the principal ground urged for reversal by both appellants pertainsto the instructions given the jury setting forth the essential elements of 7 U.S.C. 2024(b). The district court instructed the jury that one essential element of thecrimes charged was that the defendants acted "knowingly," and in theconnection therewith stated that an act is done "knowingly" if it is donevoluntarily and purposely, and not because of mistake, accident, or any otherinnocent reason. The district court, however, refused to instruct the jury thatanother essential element of the crime charged was that the defendants knewthat they acquired the coupons in a manner not authorized by statute orregulation. On appeal, this failure to so instruct constitutes the primary groundfor reversal.

As indicated, 7 U.S.C. 2024(b)(1) provides, in essence, that whoever

knowingly acquires food stamp coupons in a manner not authorized by statuteor regulation is guilty of a felony. It is the government's position that theadverb "knowingly" modifies only the verb "acquire," and does not modify theensuing clause "in a manner not authorized by this chapter or the regulationsissued pursuant to this chapter." Counsel for the defendants argues that theword "knowingly" modifies not only the verb "acquire," but also the ensuing

clause "in a manner not authorized by this chapter or the regulations issuedpursuant to this chapter." In short, the defendants maintain that a knowledgethat an acquisition of food stamp coupons is in a manner not authorized bystatute or regulation is an essential element of 7 U.S.C. 2024(b), and thatfailure to so instruct the jury constitutes reversible error. We agree.6

Despite the fact that millions of individuals have participated in the Food StampProgram since its inception in 1964, this case appears to be one of firstimpression. Neither of the parties has identified any case directly bearing on thepresent issue, nor has our search revealed any such case.

The problem here is essentially one of ascertaining Congressional intent. We

begin with the proposition that, except in rare circumstances, a statute which isclear and unambiguous on its face must be given effect according to its plainmeaning without reference to legislative history. Rubin v. United States, 449U.S. 424, 430, 101 S.Ct. 698, 701, 66 L.Ed.2d 633 (1981); TVA v. Hill, 437U.S. 153, 187 n.33, 98 S.Ct. 2279, 2298 n.33, 57 L.Ed.2d 117 (1978); UnitedStates v. Western Pacific Railroad Co., 385 F.2d 161, 163 (10th Cir. 1967),cert. denied, 391 U.S. 919, 88 S.Ct. 1805, 20 L.Ed.2d 656 (1968). Weconclude, however, that 7 U.S.C. 2024(b) is simply not clear on its face, and,on the contrary, is ambiguous. The statute can be read either way.3 In suchcircumstance, resort to legislative history is proper.

The Food Stamp Act of 1964 was introduced in Congress in the spring of thatyear as H.R. 10222.4 Hearings on this bill were held before the SenateCommittee on Agriculture and Forestry on June 18 and 19, 1964. During theentire two days of testimony, discussion of the enforcement provision of theAct surfaced only once, and the issue of whether liability should be imposed forvoluntary acquisition of food stamp coupons by individuals who were unawarethat the acquisition was unauthorized was not addressed. See Food Stamp Actof 1964: Hearings on H.R. 10222 Before the Senate Committee on Forestry &Agriculture, 88th Cong., 2d Sess. 32-33 (1964). Likewise, neither of the twocommittee reports published by Congress on H.R. 10222 sheds any light on thisquestion.5

Finding the contemporaneous legislative history to be of little assistance in

resolving the problem at bar, we refer next to earlier versions of the food stampbill for some clue as to the meaning of the enforcement provision. On April 22,1963, in the year preceding the enactment of H.R. 10222, H.R. 5733 wasintroduced in the House. H.R. 5733 included a provision identical to theenforcement section enacted in H.R. 10222.6 Hearings on this bill were heldbefore the House Committee on Agriculture on June 10, 11, and 12, 1963,

before the legislation was tabled by the committee in a special executive

session. Review of the text of those hearings reveals only that the enforcementprovision was drafted by the Department of Justice. See Hearings on the FoodStamp Plan Before the House Committee on Agriculture, 88th Cong., 1st Sess.5-6 (1963).10

In short, it does not appear the issue before us was ever considered byCongress. We conclude, therefore, that the "legislative history of (the FoodStamp Program) hardly speaks with that clarity of purpose which Congresssupposedly furnishes courts in order to enable them to enforce its true will."Universal Camera Corp. v. NLRB, 340 U.S. 474, 483, 71 S.Ct. 456, 462, 95L.Ed.2d 456 (1951). Accordingly, we turn instead to certain maxims ofstatutory construction for aid in interpreting 2024(b).

11

It is well established that ambiguity concerning the ambit of a criminal statute

should be resolved in favor of lenity and construed strictly against thegovernment. Adams Wrecking Co. v. United States, 434 U.S. 275, 285, 98S.Ct. 566, 572, 54 L.Ed.2d 538 (1978); United States v. Bass, 404 U.S. 336,347-48, 92 S.Ct. 515, 522-23, 30 L.Ed.2d 488 (1971); United States v. Conners,606 F.2d 269, 272 (10th Cir. 1979); United States v. Schwanke, 598 F.2d 575,579 (10th Cir. 1979). See also J. Sutherland, Statutes and StatutoryConstruction 59.03 (4th ed. 1973) (hereinafter cited as Sutherland).7 Werecognize also that as a general rule, criminal statutes are interpreted asrequiring criminal intent, and this is particularly true in situations in which theoffense involved is a felony.8 See W. LaFave & A. Scott, Criminal Law 31(1972); Sutherland at 59.04.

12

Applying these principles to the instant case, we hold the trial court erred byfailing to instruct the jury that knowledge that one's acquisition of food stampsis not authorized by statute or regulation is an essential element of 7 U.S.C. 2024(b). In so doing we note incidentally that the decision we reach todayavoids the incongruous result of imposing criminal liability for a wider range ofviolations under the Act than civil liability.9

13

Ironically, in the instant case, the government did, in fact, introduce evidencetending to show that the O'Briens knew that they were acquiring the coupons inan unauthorized manner. 10 However, we do not know whether the jury wouldhave been persuaded by such testimony, since it was not instructed that anessential element of the crime charged was that the O'Briens knew that theiracquisition of the coupons was an unauthorized acquisition.

14

Neither of the other grounds for reversal has merit, and need not, under the

14

Neither of the other grounds for reversal has merit, and need not, under thecircumstances, be discussed.

7 U.S.C. 2024(b)(1) provides, in pertinent part, as follows:

(W)hoever knowingly ... acquires (food stamp) coupons ... in any manner notauthorized by this chapter or the regulations issued pursuant to this chaptershall, if such coupons ... are of a value of $100 or more, be guilty of a felonyand shall, upon first conviction thereof, be fined not more than $10,000 orimprisoned for not more than five years, or both. (Emphasis added.)

The problem we are presented with here is somewhat analogous to the situationdescribed in the following excerpt from LaFave & Scott:Still further difficulty arises from the ambiguity which frequently existsconcerning what the words or phrases in question modify. What, for instance,does "knowingly" modify in a sentence from a "blue sky" law criminal statutepunishing one who "knowingly sells a security without a permit" from thesecurities commissioner? To be guilty must the seller of a security without apermit know only that what he is doing constitutes a sale, or must he also knowthat the thing he sells is a security, or must he also know that he has no permitto sell the security he sells? As a matter of grammar the statute is ambiguous; itis not at all clear how far down the sentence the word "knowingly" is intendedto travel-whether it modifies "sells," or "sells a security," or "sells a securitywithout a permit." (Emphasis added.)W. LaFave & A. Scott, Criminal Law 27 (1972). Similarly, in the case at bar,it is not clear how far down the sentence the word "knowingly" is intended totravel.

H.R. 10222 was enacted as Pub.L.No.88-525, 78 Stat. 703 et seq. on August

Cong., 2d Sess., reprinted in (1964) U.S.Code Cong. & Ad. News 3275, includeonly the following analysis of the enforcement provision of the bill:

Section 14. Violations and enforcement

This section makes it a violation of Federal law to knowingly use, transfer,acquire, or possess coupons in any manner not authorized by this act or topresent, or cause to be presented, such coupons for redemption knowing themto have been received, transferred, or used in any manner in violation of theprovisions of the act.6

Subsection (b) of the enforcement provision enacted as 78 Stat. 708 appeared as

subsection 14(c) in H.R. 5733

In United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971),the respondent was convicted of possessing firearms in violation of Title VII ofthe Omnibus Crime Control and Safe Streets Act of 1968. That statute read, inpertinent part:"Any person who"(1) has been convicted by a court of the United States or of a state or anypolitical subdivision thereof of a felony ... and who receives, possesses, ortransports in commerce or affecting commerce ... any firearm shall be fined notmore than $10,000 or imprisoned not more than two years, or both."The issue involved in the Bass case was whether the statutory phrase "incommerce or affecting commerce" applied to "possesses" and "receives" as wellas "transports." After reviewing the legislative history of the Omnibus CrimeControl Act and finding it inconclusive, the Supreme Court held, in accordancewith the rule of lenity, that the clause "in commerce or affecting commerce"qualified all three antecedents.

The Model Penal Code (the Code) states that culpability requirementsprescribed by other sections of the Code will not be applied to statutoryoffenses "in so far as a legislative purpose to impose absolute liability for suchoffenses or with respect to any material element thereof plainly appears." ModelPenal Code 2.05(1)(b) (1962) (emphasis added)As we indicated earlier, in this case, the committee hearings and reports do notevince a legislative intent to impose absolute or strict liability on food stamprecipients who unknowingly take actions not authorized by statute orregulation.

Under 7 U.S.C. 2015(b)(1) participants in the program who intentionally

make false statements or misrepresentations, withhold facts, or commit actswhich violate the statute or regulations, are subject to suspension and/or

expulsion from the program

10

The record indicates that prior to the dates charged in the indictment, Ms.O'Brien applied to the State of Kansas Department of Social and RehabilitationServices for food stamps. On the application form directly above her signatureis printed a penalty warning notifying applicants that it is unlawful, inter alia, totrade or sell food stamps or to use someone else's food stamps